New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. WILLIAM BLAINE CAMPBELL
Court:TCCA
Attorneys:
Mark D. Slagle, Johnson City, Tennessee, attorney for appellant,
William Blaine Campbell.
Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant appeals the sentence imposed for the offense of
furnishing alcohol to a minor. The defendant contends that he should
have been granted judicial diversion and full probation. We affirm
the trial court.
http://www.tba.org/tba_files/TCCA/campbellwb.wpd
STATE OF TENNESSEE v. DOUGLAS CANADY
Court:TCCA
Attorneys:
Troy L. Brooks, Clarksville, Tennessee, for the appellant, Douglas
Canady.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; Jeffrey L. Long and Judson W. Phillips, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant, Douglas Canady, appeals his conviction for aggravated
robbery, for which he received a sentence of ten years in the
Department of Correction. The sole issue in this appeal is whether
the evidence is sufficient to support the verdict. Finding the
evidence sufficient, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/canadyd.wpd
STATE OF TENNESSEE v. RAYMOND JACKSON COLLINS
Court:TCCA
Attorneys:
Joseph F. Harrison, Assistant Public Defender, for the appellant,
Raymond Jackson Collins.
Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Mary Katharine Harvey, Assistant District Attorney, for
the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals from his conviction of, and four-year sentence
for, violation of a habitual traffic offender order, failure to stop
for a red light, and violation of the seat belt law. He asserts that
insufficient evidence supported the verdict, that the imposed sentence
was excessive, and that the trial court improperly denied alternative
sentencing. We affirm the convictions and sentence, holding that
sufficient evidence supported the verdict and that the trial court
properly sentenced the defendant.
http://www.tba.org/tba_files/TCCA/collinsrj.wpd
STATE OF TENNESSEE v. RICHARD ALLAN FRYE
Court:TCCA
Attorneys:
Nat H. Thomas, Kingsport, Tennessee (on appeal) and Gilbert E.
Torbett, Bristol, Tennessee (at trial) for the appellant, Richard
Allan Frye.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
This appeal arises from the order of the Sullivan County Criminal
Court upholding the district attorney general's refusal to accept the
application of the defendant for pretrial diversion. The defendant
asserts that the trial court erred in failing to determine that the
district attorney general abused his discretion by relying on facts
not supported by the evidence and by failing to consider all relevant
factors. We conclude that substantial evidence was before the
district attorney general to support the validity of each of the four
factors relied on in denying pretrial diversion and that the district
attorney general considered all relevant factors. Accordingly, the
judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/fryera.wpd
STATE OF TENNESSEE v. MICHAEL A. JANOSKY
Court:TCCA
Attorneys:
V. Michael Fox, Nashville, Tennessee, for the appellant, Michael A.
Janosky.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Marvin E. Clements, Jr., Assistant Attorney
General, Victor S. (Torry) Johnson, III, District Attorney General,
and Sean K. Allen, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
Michael Janosky appeals from his conviction of driving under the
influence. In this direct appeal, he challenges his conviction based
upon (1) erroneous admission of breath alcohol test results which he
contends were involuntarily obtained and (2) the results of the breath
test were not administered in accordance with the requirements of
State v. Sensing. As to issue (1), we hold that, absent a motorist's
express refusal, consent to a breath test is deemed voluntary as a
matter of law. With reference to issue (2), the improper
administration of the breath test, we find this issue waived because
it was not included in the appellant's motion for new trial. Tenn. R.
App. P. 3(e). Accordingly, we affirm the judgment entered by the
trial court.
http://www.tba.org/tba_files/TCCA/janoskyma.wpd
STATE OF TENNESSEE v. DAMON THEODORE MARSH
Court:TCCA
Attorneys:
Andrew Jackson Dearing, III, Assistant District Public Defender,
Fayetteville, Tennessee (on appeal), and William C. Roberts, Jr.,
Shelbyville, Tennessee (at trial), for the appellant, Damon Theodore
Marsh.
Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Robert G. Crigler, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant, Damon Theodore Marsh, appeals his conviction for second
degree murder, for which he received a sentence of 23 years and 6
months. On appeal, the defendant raises the issue of sufficiency of
the evidence to support his conviction. We conclude that the issue
raised by the defendant in this appeal is without merit. The judgment
of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/marshdt.wpd
STATE OF TENNESSEE v. GEORGE O. MEARS
Court:TCCA
Attorneys:
Larry B. Stanley, Jr., McMinnville, Tennessee, for the appellant,
George O. Mears.
Paul G. Summers, Attorney General and Reporter, Todd R. Kelley,
Assistant Attorney General, and David L. Puckett, Assistant Attorney
General, for the appellee, State of Tennessee.
Judge: OGLE
First Paragraph:
The appellant, George O. Mears, appeals his conviction in the Cannon
County Circuit Court of driving under the influence of an intoxicant,
second offense. Pursuant to the appellant's conviction, the trial
court imposed a sentence of eleven months and twenty-nine days
incarceration in the Cannon County Jail, suspending all but six months
of the appellant's sentence and placing him on probation. On appeal,
the appellant presents the following issues for our review: (1)
whether the trial court erred in permitting the prosecutor to comment
to the jury about the appellant's failure to call a witness and in
providing a "missing witness" instruction to the jury; (2) whether the
evidence adduced at the appellant's trial is sufficient to support the
jury's verdict of guilt; and (3) whether the trial court erred in
sentencing the appellant. Following a review of the record and the
parties' briefs, we reverse the judgment of the trial court and remand
this case for a new trial.
http://www.tba.org/tba_files/TCCA/mearsgo.wpd
STATE OF TENNESSEE v. JOY A. STINSON
Court:TCCA
Attorneys:
Mart S. Cizek, Clinton, Tennessee, for the appellant, Joy A. Stinson.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Elizabeth J. Boatner, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant was convicted of one count of theft of property over
$1,000 for her unauthorized charge of items at a retail store to her
former employer's account. The trial court sentenced her to four
years imprisonment, with three years suspended. On appeal, the
defendant presents the issues of whether the trial court erred in
allowing the State to introduce the testimony of an alibi rebuttal
witness whom the State did not identify as a witness prior to trial,
and in allowing the State to present evidence which she alleges tied
her to an uncharged crime. Based upon our review, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/stinsonja.wpd
STATE OF TENNESSEE v. DYRON H. YOKLEY
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, attorney for the appellant,
Dyron H. Yokley.
Paul G. Summers, Attorney General and Reporter, David H. Findley,
Assistant Attorney General, Nashville, Tennessee and Mike Bottom,
District Attorney General and James G. White, Assistant District
Attorney, Lawrenceburg, Tennessee attorneys for the appellee, State of
Tennessee.
Judge: SMITH
First Paragraph:
Pursuant to a plea agreement, Dyron Yokley, the defendant and
appellant, entered "best interest" pleas to four (4) counts of
aggravated robbery. The plea agreement provided that the "[d]efendant
is to receive an [eight] 8 year package with a sentencing hearing to
determine any alternative sentencing, if applicable." Following a
sentencing hearing, the trial court sentenced the defendant to eight
years for each count, concurrently, as provided in the plea agreement.
Relying primarily on the defendant's criminal history and previous
sentences of probation, the court ordered the defendant to serve his
sentence in the Tennessee Department of Corrections. The defendant
now appeals, arguing that all parties were unaware that the defendant
was statutorily ineligible for probation and that his plea was thus
involuntarily given. Because we find this matter is a post-conviction
issue rather than one properly raised at this time, we affirm the
judgment of the trial court
http://www.tba.org/tba_files/TCCA/yokleydyron.wpd

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